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Oliver v. City of Lenexa

United States District Court, D. Kansas

April 23, 2019

PAUL OLIVER, et al., Plaintiffs,
CITY OF LENEXA, KANSAS, et al., Defendants.



         Plaintiffs Paul Oliver and Kurt Weigel-former officers with the Lenexa Police Department-bring this action against their former employer and former colleagues, asserting violation of their due process rights pursuant to 42 U.S.C. § 1983 and several state law tort claims. Doc. 32. Defendants move to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Docs. 44, 46. For the reasons set forth herein, the Court finds that Plaintiffs fail to state a § 1983 claim. And, given its dismissal of Plaintiffs' federal claim, the Court declines to exercise supplemental jurisdiction over Plaintiffs' state law claims and therefore dismisses those claims without prejudice.

         I. BACKGROUND[1]

         A. Plaintiffs' Employment

         Plaintiffs Paul Oliver and Kurt Weigel are former police officers of the Lenexa Police Department (“Lenexa PD”). Doc. 32 ¶¶ 1-2. Oliver resigned from employment with the Lenexa PD in April 2017 and accepted a position with his current employer, the Olathe Police Department (“Olathe PD”). Id. at ¶¶ 22-23. In August 2017, Weigel likewise resigned from the Lenexa PD; Weigel now works for the Johnson County Sheriff s Department. Id. at ¶¶ 24-25. During Plaintiffs' tenure with the Lenexa PD, Defendant Thomas Hongslo served as Chief of Police for the Lenexa PD-a position he still holds today. Id. at ¶ 4. Defendants Greg Bogart and Diana Mendoza were Lenexa PD officers holding the rank of Captain during Plaintiffs' tenure. Id. at ¶¶ 5-6. Mendoza has since left the department. Id. at ¶ 6.

         B. Anonymous Letters

         This lawsuit ultimately stems from an anonymous letter allegedly written by Mendoza to Plaintiffs' new employers at the Olathe PD and Johnson County Sheriffs Department. Plaintiffs' allegations regarding the events surrounding the transmission of that letter are as follows. Plaintiffs allege that, on September 8, 2017, Mendoza went to the Lenexa Post Office to purchase stamps. Id. at ¶ 59. Mendoza purchased the stamps with a debit card issued by an organization called “Guns & Hoses.” Id. at ¶ 62. Pictures from the kiosk where the stamps were purchased show Mendoza purchasing the stamps; she was not in uniform. Id. at ¶¶ 64-65; Doc. 32-3.

         After purchasing the stamps, Plaintiffs allege Mendoza proceeded to draft the letter to the Olathe PD and Johnson County Sheriff's Department from her work computer, print copies of the letter using the Lenexa PD's equipment, place the letter into envelopes obtained from the Lenexa PD's supplies, address the envelopes, and place them in the mail. Doc. 32 ¶¶ 67-68, 70-71, 74-76. The letters were addressed to the Chief of Police for the Olathe PD and various Johnson County officials (including the Johnson County Commissioner, the Johnson County Manager, and the Johnson County Sheriff). Id. at ¶ 26; Doc. 32-2.

         In the letter, which was written anonymously, Mendoza addressed the hiring practices of local law enforcement agencies. Doc. 32-2. Specifically, she professed that local departments were “hiring experienced officers from other departments at a higher rate.” Id. She continued that “this is actually a good strategy. That is unless you start hiring the bottom of the barrel of other departments. This happens when the single goal is to fill police cars instead of caring about the character of the officer.” Id. Mendoza then referenced a Facebook exchange-which she attached to the letters-between Oliver, Weigel, and another former Lenexa PD officer, Ted Gardner.[2] Id; Doc. 45-1; Doc. 47-1. Mendoza wrote:

As you can see from this Facebook conversation the new deputy Kurt Weigal [sic], a former Lenexa PD officer, talks about losing their minds on citizens they should be serving. The Crass Cop, who is Paul Oliver, was a former Lenexa Police officer and now works for the Olathe Police Department. Had Olathe even cared about a back ground [sic] investigation and not just filling their cars, they would have found that he had received significant discipline after kicking a civilian's car during a traffic stop. It is shameful that just as recently as this month they talk about mistreating a Hispanic male and actually STILL find it funny today.

Id. Mendoza concluded that “[t]he County and surrounding agencies need to stop the practice of shifting bad officers and simply hiring them by throwing more money at them.” Id.

         C. Investigation

         After learning of the letters, Weigel contacted Lenexa PD Major Dave Brown to report the issue. Doc. 32 ¶ 48. Weigel suspected that Mendoza had authored the letters. Id. at ¶ 44. Hongslo accordingly met with Mendoza to discuss the letters and, during this meeting, Mendoza denied any involvement. Id. at ¶ 49. Mendoza proceeded to send an email to Weigel repeating her denial. Doc. 32-4. The email read in pertinent part:

Yesterday [Hongslo] showed me a picture of a letter and Facebook comments that were apparently sent to the Olathe Chief and also to the [Johnson County] Sheriff. My understanding from [Hongslo] is that you feel that I sent this letter to both. First and foremost, I want to tell you that I DID NOT send this letter to either the [Olathe] Chief or the [Johnson County] Sheriff.

Id. At the bottom of the email were the words “Sent from my iPad” repeated on three separate lines. Id. Plaintiffs allege in the amended complaint that the presence of these words means Mendoza sent drafts of her email to someone else-either Hongslo, Mendoza's husband, or members of “Command Staff”-to review and approve before sending to Weigel. Doc. 32 ¶¶ 92-94.

         Upon receipt of the email, Weigel reached out to Major Brown to report that Mendoza was contacting him. Id. at ¶ 95. Pictures taken by a camera at the kiosk where the stamps were purchased were subsequently acquired showing that Mendoza purchased the stamps used to mail the letters to the Olathe PD and the Johnson County Sheriff s Department. Id. at ¶¶ 63-65; Doc. 32- 3. Mendoza also subsequently sent a Facebook message regarding the incident wherein she referred to the letter as “[m]y letter.” Doc. 32 ¶ 101; Doc. 32-5. Mendoza resigned from the Lenexa PD on September 23, 2017. Doc. 32 ¶ 99.

         D. Dispute

         Plaintiffs filed notices of claim with Defendant City of Lenexa (“City”) on December 21, 2017, related to the actions alleged in this lawsuit. Id. at ¶ 12; Doc. 32-1. After Plaintiffs received notice that their claims were denied by the City, Plaintiffs filed this action on July 18, 2018, asserting claims for (1) violation of their Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983, (2) invasion of privacy (false light), (3) invasion of privacy (defamation), (4) invasion of privacy (intrusion upon seclusion), (5) intentional infliction of emotional distress, (6) negligent supervision, and (7) negligent entrustment. Docs. 1, 32. Defendants now move to dismiss the amended complaint pursuant to Rule 12(b)(6) for failure to state a claim for relief. Docs. 44, 46.

         II. STANDARD

         Under Rule 12(b)(6), to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007)). The plaintiffs claim is facially plausible if he pleads sufficient factual content to allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully” but “is not akin to a ‘probability requirement.'” Id. “Where a complaint pleads facts that are ...

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